IDEA Complaint Decision 01-001

On January 4, 2001 (letter dated January 4, 2001), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and §§ 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff reviewed documents and relevant education records submitted by the district as well as documents submitted by the complainant and the child's mother. Department staff interviewed two special education supervisors, a special education teacher, an assistant principal, the complainant, the child whose education is the subject of this complaint and the child's mother.

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ISSUE #1:

Did the district fail to evaluate a child for a suspected disability in a timely manner when requested in March 1999?

APPLICABLE STATUTES AND RULES:

Section 115.77, Wisconsin StatutesLocal educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age. * * *(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 115.777, Wisconsin StatutesSpecial education referrals.

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(1) (c) Any person other than those specified under par. (a) or (b) who reasonably believes that a child is a child with a disability may refer the child to a local educational agency. If the local educational agency to whom the referral is made is the school district in which the child resides but the child is attending a public school in a nonresident school district under § 118.51, the school board of the school district in which the child resides shall provide the name of the child and related information to the school board of the school district that the child is attending.

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(2) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.

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(3) A local educational agency shall do all of the following:(a) Establish written procedures for accepting and processing referrals.(b) Document and date the receipt of each referral.(c) Provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency's referral procedures.(d) At least annually, inform parents and persons required to make referrals under sub. (1)(a) about the agency's referral and evaluation procedures.

(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under § 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:(a) Evaluate the child under § 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.(b) Develop an individualized education program for the child under § 115.787.(c) Determine the special education placement for the child under § 115.79.(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under § 115.777 or initiates a reevaluation of the child under § 115.782 (4).(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 15-year-old student in the Milwaukee Public Schools. He was determined eligible for special education services on October 26, 1999, by an individualized education program (IEP) team.

In a letter dated March 15, 1999, the child's mother wrote to the principal of her son's middle school stating that she was referring her son to special education. This letter includes reasons why the parent believes her son may have a disability and a need for special education. On March 15 the district acknowledged receipt of this letter with a "received and filed date stamp". The district requested the parent agree to an extension of the 90-day period under § 115.78 (3), Wis. Stats., until October 31, 1999. The child's parent signed the permission to extend time but did not check the boxes indicating she was giving or not giving permission. The district did not clarify the mother's intent and did not request an extension from the department. On September 15, 1999, the district sent the parent a notice of an IEP team meeting to be held on October 26, 1999, to determine initial eligibility of her son for special education and placement if the child is found to be eligible. At that meeting, the child was determined to be eligible, an IEP was completed and placement determined. On December 9, 1999, the district gave the parent a notice of intent to place her son in a special education program. The notice also requested her consent for the proposed placement. On December 9, 1999, the child's mother signed the consent for initial placement of her son.

CONCLUSION:

Any person, including a parent, who believes that a child is a child with a disability, may submit a referral to a school district. The referral must be in writing and state the reasons why the person believes that the child is a child with a disability. When a child is referred for evaluation by an IEP team, the LEA must evaluate the child and determine whether the child is a child with a disability. A school district has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. In order to provide FAPE, a district, in part, must provide a child with special education and related services in conformity with the child's IEP. The LEA must develop an IEP and send a placement notice for the child within 90 days of the referral. The 90-day period may be extended with the written permission of the parent or by the department.

By letter dated March 15, 1999, the mother referred her son to the district for a special education evaluation. Her letter indicates that she is making the referral pursuant to IDEA and it includes her reasons for making the referral. The district acknowledged receipt of this referral on March 15, 1999, beginning the 90-day time limit. The child's initial IEP and placement were determined on October 26, 1999, following the determination that the child is a child with a disability. On December 9, 1999, the district gave the parent a notice of intent to place her son in a special education program. The district did not send a notice of placement offer to the parent prior to the expiration of the 90-day time limit on June 13, 1999, or by the requested extension October 31, 1999. In addition, the district did not clarify whether it had the written permission from the parent to exceed the time limit or request an extension of the time limit from the department. There is a violation regarding issue #1 of the complaint.

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ISSUE #2:

Did the district fail to provide a child with a disability a free appropriate public education (FAPE) between August 23, 2000, and January 4, 2001, when the child had a significant number of school absences due to truancy and suspensions?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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(9) "Individualized education program" means a written statement for a child with a disability that is developed, reviewed and revised in accordance with § 115.787.

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Wisconsin Statutes, Section 115.77Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under § 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:(a) Evaluate the child under §115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.(b) Develop an individualized education program for the child under § 115.787.(c) Determine the special education placement for the child under § 115.79.

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Wisconsin Statute, Section 115.79Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program * * *.

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Wisconsin Statutes, Section 115.792Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child.

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Wisconsin Statutes, Section 118.15Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

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Wisconsin Statutes, Section 118.16School attendance enforcement.

(1) In this section:(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and § 118.15 for either of the following:1. Part or all of 5 or more days out of 10 consecutive days on which school is held during a school semester.2. Part or all of 10 or more days on which school is held during a school semester.

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(c) "Truancy" means any absence of part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of § 118.15.(2) The school attendance officer:(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under § 118.15.

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(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under § 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

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Wisconsin Statutes, Section 120.13School Board powers.

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(1) SCHOOL GOVERNMENTS RULES; SUSPENSION; EXPULSION.

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(d) No pupil enrolled in a school district operating under ch. 119 may be suspended or expelled from school for truancy.

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34 CFR 300.519 Change of placement for disciplinary removals.

For purposes of removals of a child with a disability from the child's current educational placement under §§ 300.520-300.529, a change of placement occurs if--(a) The removal is for more than 10 consecutive school days; or(b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

34 CFR 300.520 Authority of school personnel.

(a) School personnel may order--(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.519(b));(ii) After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under § 300.121(d); and

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(b)(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under § 300.519, including the action described in paragraph (a)(2) of this section--(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.(2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.(c)(1) If subsequently, a child with a disability who has a behavioral intervention plan and who has been removed from the child's current educational placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement under § 300.519, the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.(2) If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program or if the child is unable to attend school for physical or emotional reasons, arrange for homebound instruction. If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child with FAPE.

FINDINGS OF FACT:

The district provided the department an attendance record of the child whose education is the subject of this complaint which covers the time period between August 23, 2000, and January 5, 2001. This record indicates that the child attended as follows:

Between August 23, 2000, and January 5, 2001, there were 82 days of school. The child was present at school for all class periods on 3 days. The child was absent excused on 20 days. The child was absent unexcused on 59 days. Between August 23, and September 6, 2000, the child was absent unexcused for all or part of 7 days out of 10 consecutive days on which school was held during the semester. The child was absent unexcused for all or part of 59 or more days on which school was held during the semester. State statute defines an habitual truant as a pupil who is absent from school without an acceptable excuse for either part or all of 5 or more days out of 10 consecutive days on which school is held during a school semester; or part or all of 10 or more days on which school is held during a school semester. District staff notified the child's parent of the child's truancy through telephone calls. The district did not notify the parent by registered or certified mail when the child initially became an habitual truant. On October 3, November 13, December 14, 2000, and January 25, 2001, a district truancy letter was sent to the child's parents. The notices of suspension that the student received on November 9, and 29, 2000, include in the statement of the cause for the suspension "truancy from school" and "truant from class."

On December 7, 2000, an IEP team meeting was held to review and revise the child's IEP, develop an annual IEP, determine placement, develop a transition statement and conduct a functional behavior assessment. The child and the child's mother and advocate did not attend the IEP team meeting. The child's parent states that the IEP team meeting was cancelled and an IEP team meeting scheduled for January 10, 2001. The December 7, 2000, IEP team meeting was attended by the child's special education teacher and the assistant principal serving as the local educational agency representative. The child's attendance, academic performance, and behavior were considered at the December 7, 2000, IEP team meeting. The child's December 7, 2000, IEP includes a goal with objectives to address the child's school attendance. The IEP team determined that the child's IEP services would be delivered at the child's current placement. A notice of educational placement dated January 8, 2001, was given to the parent.

Between September 27 and December 4, 2000, the child was suspended for 10 days (September 27, 28, 29, October 5, 11, November 10, 22, 30, December 1, 4, 2000). On January 3, 2001, the child was suspended for five days. The assistant principal wrote a memo to the child's teachers requesting that the child's assignments be written down and submitted to the office for the child's mother to pick up. On January 10, 2001, a district central office hearing was held regarding the child. On January 17, 2001, an IEP team meeting was held to review and revise the child's IEP, develop an annual IEP, determine placement, and conduct a functional behavior assessment. The child, the child's mother and advocate attended the IEP team meeting. The child's attendance, academic performance, and behavior were considered at the IEP team meeting. The child's January 17, 2001, IEP includes goals with objectives to address the child's behavior. The IEP team determined that the child's IEP services would be delivered at the child's current placement. The child's parent received the notice of placement on January 17, 2001.

CONCLUSION:

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, the district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. When a child is absent from school without an acceptable excuse part or all of five or more days out of ten consecutive days, or part or all of ten or more days, on which school is held during a semester, the child becomes an habitual truant. A district is required to notify the child's parent by registered or certified mail when the child initially becomes an habitual truant. Either before or not later than ten business days after either removing a child for more than ten school days in a school year or commencing a removal that constitutes a change of placement for a child with a disability, the school district must convene an IEP team meeting to develop appropriate behavioral interventions to address the child's behavior.

On January 3, 2001, the district removed the child for the eleventh day in the school year. The district held an IEP team meeting for the child on January 17, 2001, ten business days after removing the child for more than ten school days. On January 17, 2001, when the district revised the child's IEP, the district conducted a functional behavior assessment and included objectives to address the child's school attendance and behavior.

The child was absent excused on 20 days. The child was absent unexcused on 59 days. Between August 23, 2000, and January 5, 2001, the child attended school 3 full days of 82 days of school. Between August 23, and September 6, 2000, the child was absent unexcused for all or part of 7 days out of 10 consecutive days on which school was held during the semester. The child was absent unexcused for all or part of 59 or more days on which school was held during the semester. On September 6, 2000, the child was an habitual truant under state law. The district did not notify the child's parent by registered or certified mail when the child initially became an habitual truant. On October 3, 2000, the district first notified the child's parent by mail that the child was an habitual truant. The district did not take timely action to provide FAPE to the child when he had significant absences from school. Further the notices of suspension that the student received on November 9, and 29, 2000, include in the statement of the cause for the suspension "truancy from school" and "truant from class." Under state law no student enrolled in a MPS school may be suspended from school for truancy. Issue #2 of the complaint is substantiated.

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ISSUE #3:

Did the district fail to provide the parent of a child with a disability, upon request, access to her child's educational records prior to an individualized education program (IEP) team meeting?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wis. StatutesPupil records.

(1) DEFINITIONS. In this section:

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(d) "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under § 115.28 (7) to hold a certificate, license or permit if such records and notes are not available to others, nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

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(2) CONFIDENTIALITY.

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(a) A pupil, or the parent or guardian of a minor pupil, shall, upon request, be shown and provided with a copy of the pupil's progress records. (b) An adult pupil or the parent or guardian of a minor pupil shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

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34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Education records"(a) The term means those records that are:(1) Directly related to a student; and(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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34 CFR 300.560 Definitions.

As used in §§ 300.560--300.577--

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(b) Education records means the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.501 Opportunity to examine records; * * *.

(a) General. The parents of a child with a disability shall be afforded, in accordance with the procedures of §§ 300.562-300.569, an opportunity to--(1) Inspect and review all education records with respect to--(i) The identification, evaluation, and educational placement of the child; and (ii) The provision of FAPE to the child; and

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to §§ 300.507 and 300.521-300.528, and in no case more than 45 days after the request has been made.

Language has been added to make it clear that an agency must comply with a request for access before any meeting regarding an individualized education program. This will help insure that interested parents are able to familiarize themselves with their child's records prior to any meeting and be able to participate more knowledgeably.

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Letter to the unnamed inquirer, Office of Special Education Programs (OSEP), U.S. Department of Education, March 31, 1998, 30 IDELR 539.

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[T]he education records of a child, * * * are those records directly related to a child and maintained by the educational agency, or a party acting for the educational agency, on behalf of a child. See 34 CFR §§ 300.560 & 99.3. Examples of such records would be the child's individualized education plan (IEP), tests taken by the child, evaluations of the child, and other documents created in connection with the child's educational performance and conduct.

FINDINGS OF FACT:

On November 22, 2000, and January 3, 2001, the child's mother states that she verbally requested a record of the suspensions her son had received during the 2000-2001 school year. The November 22, 2000, request cannot be confirmed. On January 3, 2001, when she requested the record, she was provided a printed "period attendance condensed summary." This record did not include the days of suspension. On January 8, 2001, the child's mother was given a "period attendance condensed summary" with dates hand checked to indicated days of suspension. On January 10, 2001, a district central office hearing regarding the student's behavior was held. On January 17, 2001, an individualized education program (IEP) team meeting for the child was conducted. The child and the child's mother attended the IEP team meeting with a parent advocate.

CONCLUSION:

A school district is required to provide parents of a child with a disability, on request, access to their child's education records without unnecessary delay and before any meeting regarding an IEP or a due process hearing and in no case more than 45 days after the request has been made. Records include any information directly related to the student and maintained by an educational agency. On January 3, 2001, the child's mother requested access to her child's record of school suspensions. On January 8, 2001, the child's mother was provided the record of school suspensions. The district did provide access to the child's record before the January 10, 2001, central office hearing and the January 17, 2001, IEP team meeting. The district correctly implemented the law related to issue #3 in this complaint.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district:

evaluates children with a suspected disability in a timely manner (issue #1);

within a reasonable amount of time after the district learns that a child is not attending school, takes steps consistent with its truancy procedures and state laws to provide the child with FAPE (issue #2);

does not suspend students for truancy (issue #2); and

conducts an IEP team meeting to consider whether the child whose education is the subject of this complaint requires additional services because of the delay in providing FAPE.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, §§ 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.